Appeal will not abate when there is substantial representation.

These Civil Revision Petitions are directed against the orders dated 01.02.2006 made in E.A.Nos.59 and 57 of 2005 in E.P.Nos.209 and 208 of 2004 in O.S.Nos.83 and 82 of 1987 by the District Munsif, Arni, allowing the Applications to implead the legal representatives of Deceased – First Plaintiff – A.K.S.Thiyagarajan. Legal Representatives of Deceased/Judgment Debtor are the Revision Petitioners.

2. Factual background in nutshell is as follows:- The Property in Door Nos.235 and 236, Gandhi Market Road, Arni Town, Tiruvannamalai District belongs to (1) A.K.S.Thiyagarajan, (2)A.K.S.Jagatheesan, (3)A.K.S.Bala-sundaram and (4) A.K.S.Azhagesan. All of them, as joint owners of the property, let out the property to the Defendant - Gopal. The said properties are non-residential buildings and the Judgment Debtor was the Tenant. Eviction was sought for and Notice was issued on 211. 1985 terminating the tenancy. Since the buildings were exempted from the provisions of the Tamil Nadu Buildings (Lease and Rent Control) Act, Civil Suits were filed in O.S.Nos.82 and 83 of 1987 before Sub-Court, Arni against the Judgment Debtor/Tenant – Gopal for recovery of possession of the properties. The Suits were decreed on 28.09.1989.

3. As against the Judgment and Decree, the Tenant – Gopal has filed Appeals in A.S.Nos.180 and 181 of 1989 on the file of Additional District Court, Vellore. By Judgment and Decree dated 28.02.1990, the Appeals were allowed. Aggrieved by the same, the Plaintiffs/Landlords filed Second Appeals in S.A.Nos.1196 and 1197 of 1990 before High Court, Madras, which were allowed on 011. 2001. The Plaintiffs/Landlords were granted decree for recovery of possession.

4. During the pendency of the Second Appeals before High Court, Madras, one of the Landlord – A.K.S.Thiyagarajan – First Plaintiff died on 19.09.2001. The death of the First Decree Holder was not brought to the notice of the High Court and the High Court delivered the Judgment on 011. 2001 allowing the Second Appeals.

5. Subsequently, three of the surviving Plaintiffs viz., A.K.S.Jagatheesan, A.K.S.Balasundaram and A.K.S.Azhagesan along with legal heirs of Deceased – First Plaintiff filed E.P.Nos.60 and 61 of 2002 before Sub-Court, Arni for execution of the Decree. The Execution Petitions were transferred to District Munsif Court, Arni and renumbered as E.P.Nos.208 and 209 of 2004. When the matters stood thus, the Decree Holders filed E.A.Nos.57 and 59 of 2005 for impleading legal heirs of the Deceased – Decree Holder A.K.S.Thiyagarajan as Petitioners in the Execution Petition. That was strongly objected by the Judgment Debtors.

6. Learned District Munsif, Arni allowed the Applications for impleading the Legal Representatives of the deceased on the ground that there is a decree for recovery of possession and that Brothers of Deceased – A.K.S.Thiyagarajan were parties to the Second Appeals to whom the right to continue Appeals survive.

7. Assailing the Impugned Order, learned counsel for the Petitioners contended that when one of the Joint Decree Holders died and when no steps were taken for impleading legal representatives in the Second Appeals, the decree abates in entirety. It was further submitted that when there is no separate and divisible right to the Decree Holders, the Decree cannot be executed by other Decree Holders. It was further submitted that the Respondents being the Appellants in the Second Appeals ought to have taken steps, without which decree in the Second Appeals are not valid and inexecutable. In support of her contentions, learned counsel placed reliance upon the decisions reported in (1) A.I.R. 1966 S.C. 1427; (2) 2001 (3) C.T.C. 52; (3) 2003 (3) S.C.C. 272; (4) 2004 (7) S.C.C. 354 and (5) 2006 (3) S.C.C. 605.

8. Countering the arguments, learned Senior Counsel Mr.R.Subramanian has submitted that Plaintiffs 2 to 4 being Brothers, the right to continue to sue survives to them. It was further submitted that when the fact of dea